Rand Paul Nullification Proposal Emerges in Gun Debate

With a spate of shootings in recent months, there are calls for tighter gun control and President Obama has political capital to spend.

Getting much of what he wanted with the fiscal cliff, the president has proposed twenty-three executive orders, a practice he criticized while a U.S. Senator, to address gun policy in the event Congress does not pass adequate legislation.

On the other side, Kentucky U.S. Senator Rand Paul declared on TV that the president does not have the authority to write laws – an authority not granted to the executive branch. As a solution to the overreach, Paul advocates for nullification of any gun law deemed unconstitutional with forthcoming legislation:

“In this bill we will nullify anything the president does that smacks of legislation. And there are several of the executive orders that appear as if he’s writing new law. That cannot happen.”

Paul’s allusion to nullification is a controversial move and Virginia U.S. Senator Tim Kaine, a Democrat, objected to Paul’s solution on CNN, calling it a “code word.” Although he did not specify what sort of “code” nullification entails, a writer at The Daily Beast made the connection saying, “No, Senator Paul, we do not nullify things in this country. . . . This is no longer the antebellum era.”

The implication is that nullification, and its association with states’ rights, makes it concurrent with slavery and racial discrimination, but also perhaps hinting at the Nullification Crisis of 1832 that nearly caused civil war.

During Obama’s presidency, nullification has emerged as a measure to thwart his agenda. It was reported on IVN that Wisconsin has attempted to nullify the health insurance exchange of the Affordable Care Act as well as several other states.

A popular book written in 2010 by libertarian Thomas E. Woods explicated the notion and history of nullification. The book was widely criticized by Republicans and Democrats, but remained highly profitable and helped make Woods a highly-desired speaker for libertarian, tea party, and constitutional groups.

Nullification is also sometimes known as interposition, because it places state governments between their people and the federal government by refusing to enforce federal laws the particular state believes is unconstitutional.

The first time nullification, or interposition, was invoked was through the 1798 and 1799 Kentucky and Virginia Resolutions. The occasion of the passage of the Alien and Sedition Acts made it illegal for citizens to criticize the president. Numerous citizens and newspaper editors were imprisoned for criticism of President John Adams.

In addition to Wisconsin’s recent efforts to refuse enforcement of elements of the new health care law, there have been many other states and instances where nullification was utilized or attempted, although the word “nullification” has not always been used.

In 1854, the Wisconsin Supreme Court used nullification to refuse enforcement of the Fugitive Slave Act, a provision of the Compromise of 1850 that required the return of runaway slaves in free states to their owners in slave states. However, this act of nullification was eventually overturned by the US Supreme Court.

California voters in 1996 effectively nullified federal laws by approving the legalization of medical marijuana in their state. In the first decade of the Twenty-First Century, two dozen states nullified the Real ID Act, an attempt many saw as the imposition of a form of national identification.

The successful voter referendums in Colorado and Washington to legalize small amounts of marijuana were, in practice, acts of nullification. Even President Obama, who has been aggressive in his enforcement of the War on Drugs, admitted after the election that he would “let the voters speak,” a tacit admission that the two states were nullifying federal law and the president does not plan to stop them.

Although Paul’s legislation has not yet surfaced, it may not be the traditional execution of nullification. Whereas other instances of nullification were through state governments, this appears to be an initiative by the legislative branch to reclaim its constitutional powers in the face of a potentially escalating presidential power.

Still, the Rand Paul nullification proposal is likely to stir an already-contentious gun control debate. Gun rights are a passionate issue for many Americans and when faced with a president or a government they believe is circumventing the constitution, nullification often emerges as one of the only viable options.

About the Author

Carl Wicklander is a 2006 graduate of Concordia University - Nebraska and is a student of history, politics, philosophy, and religion. He is originally from Bowling Green, Kentucky and today lives in Illinois with his wife.
"To be ignorant of the past is to be forever a child."
- Cicero (106-43 B. C.)

Obama did not give the slightest indication that he would allow Colorado and Washington to get away with legalizing marijuana. President Nieto of Mexico was furious when marijuana was legalized in the two states and he vcwed to meet with Obama to enforce federal law. Obama responded by having Mexican commandos sent to the U.S. Army Northern Command’s headquarters in Colorado for "training."

We are in the verge of a civil war, and the first things to go will be our guns.

So it is a legislative act of the US Congress to grant states the right to nullify the president's executive orders. Federal law versus states rights have always been a contentious issue, but now with this political stalemate, both sides are trying to find anyway to get their way through.

Such an act would not be "granting states the right to nullify the president's executive orders." The people through the states already possess that right, regardless of what the policy is. There is no sovereign government in this country; the individual is sovereign. Any individual, and more practically any community, or state can nullify, and simply put, tell the feds to take a hike anytime they want. Congress alone has the power of legislation, the executive and the judicial do not. For example, Roe v. Wade does not have any constitutional power of law at all. The entire purpose of the three branches for such an occasion as this. Members of Congress are sent to represent their constituents, (and the Senate was supposed to represent the state) and if necessary resist other branches of the federal government. Ultimately, the individual is greater than any government and the more local the government, the more constitutional authority it has. What we have today is the original intent of the Constitution, (as Jefferson and Madison explained in the Kentucky and Virginia Resolutions) turned upside down on its head.

this is definitely an example of the executive overreaching his constitutional bounds, but I'm not so sure it constitutes tyranny. Our system is designed with checks and balances, these things are bound to happen therefore it is up to the appropriate mechanisms to ensure that each branch remains within its constitutional boundaries

The administration has lost it's way, and is being sworn in for an entire second term, as I type. For some reason, the executive branch thinks it's word is law & that it can do anything it wants, from repealing the 4th amendment, and then "assuring" and "promising" citizens indefinite detention would never be utilized. God help us all, we are going to need it.

Here's a salute to the incapable, ignorant, integrity lacking traitors currently running Washington DC... You are a DISGRACE to Americans! A disgrace to freedom, and everything this country stands for, and a disgrace to humanity. Truly the worst administration in the past 60 years of my life. Here's another fact mr President.. We don't give a SQUAT, about your "promises", I care what the LAW says, and right now, the LAW says you are fascists. Don't forget the people pay the taxes that feed you, and ALLOW you into your position of power... and you are gnawing on the hand right now.